Director of Public Prosecutions v AB
[2013] VCC 1185
•26 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AB |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2013 | |
DATE OF SENTENCE: | 26 June 2013 | |
CASE MAY BE CITED AS: | DPP v AB | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1185 | |
REASONS FOR SENTENCE
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Catchwords: Trial – sentencing – sexual penetration of child under 16 – victim under offender’s care, supervision and/or authority
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Mr R. Hammill Mr N. Donaghy | Office of Public Prosecutions |
| For the Accused | Mr R. Stary | Stary Lawyers |
HIS HONOUR:
1 AB, on 17 June 2013 you were found guilty by jury verdict of three charges of sexual penetration of a child under 16. Because the offending occurred whilst the victim was under your care, supervision and/or authority, the maximum penalty for this offence is 15 years' imprisonment.
2 You were born on 27 January 1971 and were aged around 33 and 34 at the time of the offending. You are presently aged 42.
3 The victim was aged between 14 and 15 years at the time of the offences in 2004 and 2005. In July this year she will be 24.
4 The victim first mentioned the sexual abuse in 2008 when she was 18-19, and first reported the matters to police in November 2011 when she was 22.
5 At the time of the commission of the offences you were employed as a teacher at a private school at an outer south-eastern suburb of Melbourne. You were the Deputy Director of Music.
6 In 2003 your marriage broke down. There was a child to this marriage, a boy at that time aged approximately four.
7 The victim's mother was also a teacher at that school and her position was Director of Music. Accordingly, you worked very closely with her, became close friends also with her family, and from time-to-time you were invited to their family social events and holidays. You often had dinner with the family and went on interstate camping trips with them both in 2004 and 2005.
8 The victim was a student at the school and was very talented musically. You had some level of input into her teaching, both as her teacher, tutor and in pastoral care. Given your closeness to her family, you would often spend more time with her in the school environment than normal. This was observed by the wider school community and it is noted that it was stated at the trial that this closeness caused unease amongst the school staff and resulted in you at one point being formally reminded of the proper boundaries that exist between staff and student.
9 The victim's parents also felt unease about the closeness of the relationship that had developed between you and the victim and you were spoken to by her father.
10 As to the charges of which you were found guilty - firstly, Charges 10 and 11, two charges of sexual penetration of a child under 16 under your care, supervision or authority.
11 You had, at an earlier time, given the victim some lingerie and a vibrator. On one occasion the victim recalls going to your house on an evening to baby-sit your small child. The arrangement between you and the victim's parents was that she could stay the night at your house if you were home late. It happened on a couple of occasions. The victim had taken with her the vibrator that you had earlier given to her.
12 At some point, during the night you used the vibrator on the victim by inserting it on and into her vagina. This conduct constitutes Charge 10. Then after using the vibrator, you had consensual sexual intercourse with the victim. This conduct constitutes Charge 11.
13 The victim slept the night with you in your bed and said she remembered that occasion specifically because she recalls being alarmed when your young son came into bed with you both in the morning. She said that this event was in the latter half of 2004.
14 On another occasion when the victim was babysitting and staying over your house, the victim wore the lingerie you had earlier given to her. You had consensual sexual intercourse and the victim said she remembered this incident because of the lingerie. This conduct constitutes Charge 12, sexual penetration of a child under 16 under your care, supervision or authority.
15 The charges upon which you were found guilty represented three of a 17-charge indictment. The jury were unable to arrive at a verdict on seven further charges of sexual penetration with a child under 16 and on two charges of committing an indecent act with a child under 16, and returned verdicts of not guilty on four charges of sexual penetration of a child under 16 and one charge of committing an indecent act with a child under 16.
16 Whilst the victim gave evidence that sexual activity between the two of you occurred on multiple occasions throughout 2004 and 2005, and particularised that by adding sometimes up to three times a week at an average of once per week, in light of the jury's verdicts and incapacity to reach verdicts over a wide range of alleged further offending, I consider you, therefore, to be sentenced only upon the singular discrete acts upon which the jury have returned verdicts of guilty and in no wider context.
17 I now turn to your personal circumstances.
18 As I noted earlier, at the time of the offending you were aged 33 and 34 years. You are 42 years old now and have no criminal history.
19 You have otherwise lived what may fairly be described as an exemplary life. You have obviously worked hard and consciously over many years.
20 From the age of 17 you have played music professionally. You obtained a Bachelor of Arts degree when 20 and a Graduate Diploma of Education when 22. You served with the Royal Australian Navy from ages 22 to 28, in the process gaining certificates in management. You then commenced a career in teaching from 1999 until your resignation after these allegations were raised in 2011.
21 Throughout that time you continued your interest in music and musical theatre productions outside school hours. Since resigning from your teaching work you have further re-educated yourself and commenced a new career with a logistics company. You have worked continuously since your resignation from school.
22 You married in 1998 and your son by that marriage is now aged almost 14. Unfortunately the marriage did not last and you separated in 2003, when your son was approximately three or four.
23 You finally divorced in 2005 and over that period and to the present time have shared joint custody of your son with your former wife and have continued to enjoy a close relationship with him. You were initially very distressed by the breakdown of your first marriage and your former wife has praised your ability at that time to respond intelligently, amicably and with consideration for others.
24 You formed a new relationship in 2010 and married your present wife in 2011. You now have two children with her, two boys aged 20 months and nine weeks. Both your former wife and your present wife have provided evidence of your good qualities and the emotional and practical effects the allegations, the impending trial and the jury's verdict have had upon you.
25 Professionally, you have been held in high regard. A teacher at the school gave sworn evidence at your trial as to your dedication to student welfare and progress, your honesty and the appropriate and professional way in which you related to female students.
26 A psychological report from Mr Hugh Perera was tendered on your plea. Mr Perera consulted with you on nine occasions from 11 October 2011 to 1 October 2012.
27 In his report dated 24 June 2013, Mr Perera expressed the opinion that you met the criteria for adjustment disorder with mixed depressed mood and anxiety. In Mr Perera's opinion your depression and anxiety was as a result of your response to your impending trial, loss of employment and concern about your future, exacerbated by your concerns for your family. You had expressed suicide ideation, but denied concrete plans.
28 Psychological intervention was provided through the teaching of techniques to manage your condition, cognitive behaviour therapy and exercise and relaxation programs. I note also that you were being treated pharmacologically with anti-anxiety and depression medications through your treating general practitioner.
29 Despite your previous good character, your behaviour towards the victim was appalling. She was a young adolescent, aged just 15 and you were aware she was emotionally vulnerable with a history of eating disorder and prone to mood swings.
30 You acknowledged in evidence on oath that you became for her a kind of crutch, someone to help out through difficult things. Because of your closeness with her and her family, she opened up to you about things and she was openly and authentically affectionate with you in a public environment. Your response was to exploit that fragile adolescent vulnerability, in high breach of your position of trust as a teacher and mentor and in breach of your trusted place as a close friend of her parents, for your own selfish sexual gratification.
31 There are two purposes which the absolute prohibition on sexual activity with a child under the age of 16 serves. First, it protects children from the harms which premature sexuality causes, thereby protecting children from their own immaturity. Secondly, the prohibition is intended to deter others who may consider engaging in sexual activity with a child under 16.
32 The absolute prohibition on sexual activity with a child under 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long lasting and serious, and may manifest itself both in physical and psychological forms. Therefore, harm is presumed irrespective of whether a child consents.
33 The victim impact statement prepared by your victim and tendered at your plea, provides eloquent affirmation of the sense of those principles and the damage that can be wrought. The guilt, shame and self-loathing and the long maintenance of secrecy has caused withdrawal, depression and unhappiness and changed the way in which she has experienced relationships.
34 Principles of denunciation and general and specific deterrence are important in the sentencing discretion.
35 You contested the allegations, gave evidence on oath denying them, and as a consequence there can be no consideration for any remorse.
36 In mitigation, I accept that you have no convictions for any other offending and are a person of otherwise good character, both generally as to the way in which you have conducted your life and specifically as to how you have responsibly conducted your professional duties otherwise as an educator.
37 Furthermore, you have otherwise been a loving and caring husband and father, and the hardship which you have now placed upon your loved ones is a source of great distress and anxiety to you. I accept that you have reacted to your psychological detriment and have received treatment.
38 Whilst I accept that your reaction to imprisonment and its consequences to your family will be felt severely by you I do not consider that there is sufficient evidence to establish that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
39 It appears from the report of Mr Perera that your emotional condition was situational and directly responsive to the consequences of the allegations, you had previously apparently been coping well, the consultations concluded in October 2012 after conservative treatment and some appropriate pharmacological support through your general practitioner and you have managed to continue to work in gainful and responsible employment until the time of your trial.
40 Nonetheless I accept and am prepared to allow as a mitigating aspect the great distress you will feel from the impact of your imprisonment and disgrace on your family, both emotional and financial.
41 I also take into account that:
· your career as a teacher has been brought to ruin by the impact of the jury’s verdicts,
· any sentence of imprisonment, however short, is a severe punishment to a person of previous good character and who has had no previous experience of incarceration, and
· the delay in these matters being reported and brought to trial means that you are being sentenced for crimes committed over 7 years ago and you have not re-offended in that time.
42 Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on two sexual offence charges I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed.
43 If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
44 This means the sentencing task in respect of Charge 12 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentence is imposed, and to achieve that purpose a sentence may be imposed longer than which is proportionate to the gravity of the offence considered in the light of its objective circumstances. However, because of the circumstances and mitigating factors in your case, I do not propose to do so.
45 Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 12, the sentence I impose is to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation orders other than those which I have ordered.
46 I note here that the Crown did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.
47 I consider also that the aspect of specific deterrence should be given less weight than otherwise because of your previous good character and your prospects of rehabilitation, which I assess as high.
48 It seems likely to me that the circumstances that led you into this completely irresponsible physical, and I believe totally misplaced, romantic behaviour were situational to the unusual emotional relationship you had developed with the victim and in circumstances where you had only recently experienced an emotional marriage breakdown. Accordingly I consider it unlikely that you will offend again in this manner.
49 AB, could you please now stand.
50 On each of Charges 10, 11 and 12 of sexual penetration of a child under 16, you are convicted and sentenced to four years' imprisonment.
51 Charge 11 is the base sentence.
52 I direct that nine months of the sentence imposed on Charge 12 and three months of the sentence imposed on Charge 10 be served cumulatively on the sentenced imposed on Charge 11 and upon each other.
53 The total effective sentence is five years' imprisonment.
54 I direct that you serve a minimum period of three years' imprisonment before being eligible for parole.
55 I also direct, pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charge 12 as a serious sexual offender within the meaning of that Act.
56 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of nine days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
57 There is a further matter to which I need to attend. You may take a seat for a moment. I need to speak to you about provisions of the Sex Offender's Registration Act.
58 The offences of which you have been found guilty are registrable offences pursuant to the provision of the Sex Offender's Registration Act and by reason of you being sentenced for these offences you are a registrable offender and obliged to comply with reporting obligations imposed by that Act.
59 As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise and, in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
60 Further, pursuant to s.50 of the Sex Offender's Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.
61 I am also required to inform you of the length of your reporting period, which is for life.
62 My Associate will, in a moment, hand to you the Notification of Reporting Obligations, which I have already signed. Your representative in court today, Mr Stary, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you and after you have read it, to acknowledge that you have received the Notification form and to return the Acknowledgement to my Associate. So those registration materials can now please be passed to AB.
63 MR STARY: Would Your Honour permit me to attend at the dock?
64 HIS HONOUR: Of course, yes, thank you.
65 MR STARY: Thank you, Your Honour, I have previously explained to AB what the effect of the registration is and he is cognisant as to his obligations, Your Honour.
66 HIS HONOUR: Thanks, Mr Stary.
67 At the plea hearing the Crown sought an order for the taking of a forensic sample of a scraping from the mouth and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the making of the order is in the public interest.
68 I must inform you, AB, that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that? You have to acknowledge, rather than nod.
69 PRISONER: Yes, Your Honour.
70 HIS HONOUR: Thank you. That concludes my sentencing remarks. Anything else from either counsel?
71 COUNSEL: No, Your Honour.
72 HIS HONOUR: Thank you.
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